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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 21, 2017

v No. 328001 Livingston Circuit Court MARTIN EDWARD ZALE, LC No. 14-022392-FC

Defendant-Appellant.

Before: B ECKERING , P.J., and O’C ONNELL and B ORRELLO , JJ.

P ER C URIAM

. Defendant, Martin Edward Zale, appeals as of right his convict ions following a jury trial of second-degree murder, MCL 750.317, intentionally discharging a firearm from a motor vehicle, MCL 750.234a, and two counts of possessing a firearm d uring the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenc ed him to serve concurrent terms of 25 to 50 years’ imprisonment for second-degree murder and 32 months to 4 years’ imprisonment for intentionally d ischarging a firearm from a mot or vehicle, as well as two consecutive terms of two years’ imprisonment each for his two c ounts of felony-firearm. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Zale shot the victim, Derek Flemming, during a road-rage incid ent. According to Amy Flemming, the victim’s wife, Derek was driving on Grand River A venue when a truck pulled up to a stop sign so quickly that she feared it would not stop. T he truck pulled behind them onto Grand River Avenue. It drove clo se to their vehicle, and Amy t hought they would be rear-ended. Derek attempted to get into the right lane to allow the truck t o pass, but the truck passed them on the right, sped up, pulled direc tly in front of them, and then slammed on its brakes. The truck then accelerated to the speed limit and slammed on its brakes a gain. Derek appeared angry after the second time.

At a subsequent stop at an intersection, Derek put their vehic le into park, got out of the car, and walked toward the truck. Amy saw Derek throw his hand s in the air and say, “what the ****’s your problem.” She hear d a popping noise and saw her hu sband’s head go back before he fell to the ground. Everything happened quickly and she never saw her husband’s hands touch or approach the truck.-2- According to Zale, as he drove on Grand River Avenue, his spee d varied because the vehicle in front of him was driv ing erratically. He was concer ned because it seemed that the vehicle behind him was chasing hi m through amber-colored lights . While stopped at an intersection, he saw the driver o f the vehicle behind him beginto approach Zale’s truck. The driver began hitting Zale’s truc k, and Zale rolled down his win dow and told him to stop. The man rapidly approached Zale’s wi ndow, hit him in the side of th e face while yelling and screaming, and then reached for the inside handle of Zale’s doo r. Because Zale was afraid for his life, he picked up his gun a nd shot the man. Zale believed the shooting was justified because the man intended to infli ct great harm on him.

Bus driver Sue King testified that as she was turning onto Gra nd River, she saw Derek walking toward a vehicle stopped in front of him. According to King, Derek appeared to be irate and was gesturing with his hands as if to say “what were you th inking.” The driver’s side window of the truck was up at that point. She never saw Derek touch the truck. She looked into her rear view mirror because she thought there might be “an inc ident,” heard a gunshot, and saw Derek fall backward. At that time, she thought Derek was one t o two feet from the truck and she could see daylight between it and Derek. Seven other witnesses at the intersection testified that they never saw Derek touch or reach into the truck; some emphas ized how quickly everything had happened between Derek approaching the truck and the gunsho t. However, Gerald Dinius testified that he saw Derek with his hand on top of the truck’s rail while he was moving toward the truck, and David Clevinger te stified that when he confronte d Zale shortly after the incident, Zale explained that Derek had punched him in the face. Cleving er thought that the area under Zale’s right eye looked puffy.

Following deliberations, the jury found Zale guilty as previou sly described.

II. SUFFICIENCY OF THE EVIDENCE

Zale argues that the prosecution failed to prove beyond a reas onable doubt that he did not act in self-defense . We disagree.

We review de novo a defendant’s claim that the evidence was in sufficient to support his or her conviction. People v Ericksen , 288 Mich App 192, 195; 793 NW2d 120 (2010). We review the evidence “in a light most favorable to the prosecuto r to determine whe ther any trier of fact could find the essential elements of the crime were provenbeyond a reasonable doubt.” People v Robinson , 475 Mich 1, 5; 715 NW2d 44 (2006). We must resolve any confl icts in the evidence in the prosecution’s favor. People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008).

To establish that defendant committed second-degree murder, th e prosecution was required to prove that there was “(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.” People v Reese , 491 Mich 127, 143; 815 NW2d 85 (2012) (quotation marks and citations omitted). A person ma y use deadly force against another in self-defense if the person “honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individua l.” MCL 780.972(1)(a). Whether a person’s belief regarding the use of force is reasonable “depends on what an ordinarily prude nt and intelligent person would-3- do on the basis of the perceptions of the actor.” People v Orlewicz , 293 Mich App 96, 102; 809 NW2d 194 (2011). The prosecution must disprove the defendant’s claim of self-defense beyond a reasonable doubt. Reese , 491 Mich at 155.

In this case, multiple witnesses testified that Derek did not touch the truck and that Zale shot Derek the moment after he reached the driver’s side window . Other witnesses testified that the window was up, and even Zale admitted that he rolled the wi ndow down. While some witnesses testified that Derek had touched the truck or possibl y hit Zale, when evidence conflicts, it is the province of the jury to weight the conflic ting evidence and reach a conclusion. See Kanaan , 278 Mich App 619. This Court will not interfere with the tri er of fact’s role to determine the weight of the evidence or the credibility of the witnesses. Id . We conclude that when viewing the evidence in the light most favorable to the pr osecution, a reasonable juror could have found beyond a reasonable doubt that Zale did not ac t in self-defense when he shot Derek.

III. PROSECUTORIAL MISCONDUCT

Zale argues that the prosecution improperly impeached three de fense witnesses by questioning them about arrests and convictions that did not inv olve theft or dishonesty. We disagree.

As an initial matter, Zale did not object to this conduct belo w. To preserve an issue, the appellant must challenge it before the trial court on the same grounds as he or she challenges it on appeal. People v Kimble , 470 Mich 305, 309; 684 NW2d 669 (2004). Because this issue i s unpreserved, we will review it for plain error affecting the de fendant’s substantial rights. People v Carines , 460 Mich 750, 763-764, 597 NW2d 130 (1999). An error is plai n if it is clear or obvious and it affects the defendant’s substantial rights if it affected the outcome of the lower court proceedings. Id

. Generally, parties cannot attack or support a witness’s credibi lity by using extrinsic evidence of specific instances of the witness’s conduct. MRE 6 08(b). However, MRE 609 allows a party to impeach a witn ess’s credibility by using extr insic evidence of a prior conviction if the conviction meets certain requirements, including if the crime contained an element of theft, dishonesty, or false statement:

For the purpose of attacking the credibility of a witness, evid ence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record durin g crossexamination, and

(1) the crime contained an ele ment of dishonesty or false stat ement, or

(2) the crime containe d an element of theft, . . .

Three witnesses offered genera l character testimony about Dere k’s temper and how intimidating he could be when angry. Regarding the two witness es whom the prosecution impeached with evidence of their arrests for domestic violence, neither of these arrests involved-4- a conviction. Accordingly, by its language, MRE 609 does not a pply, and the trial court did not plainly err by admitting testimony of these arrests.

The third witness offered general character testimony about De rek. The witness testified that he was afraid of Derek during a confrontation in which Der ek was angry about being overcharged on a purchase. The prosecution impeached the witne ss with evidence that he had been convicted of drunk and disorderly conduct, assault and bat tery, and attempted resisting and obstructing a police officer, usi ng the witness’s testimony to question whether the witness was truly afraid of Derek during the confrontation. This impeachme nt plainly violated MRE 609 because the prosecution used convictions to impeach a witness a nd the convictions did not involve dishonesty, false statement, or theft.

However, we conclude that this error did not affect Zale’s sub stantial rights. The testimony of this particular witne ss was cumulative to the test imonies of multiple witnesses who testified that Derek had a temper, could become irate, would ye ll and swear, and that they were afraid of him at those times. The improper impeachment of a si ngle witness was unlikely to affect the jury’s determination that Zale did not act in self-d efense when he shot Derek.

IV. JURY INSTRUCTIONS

Zale contends that the trial court improperly issued the wrong self-defense jury instruction. If defense counsel affirmatively approves the tri al court’s jury instructions on the record, defense counsel’s approva l extinguishes any error and w aives this Court’s review of the issue. People v Carter , 462 Mich 206, 215; 612 NW2d 144 (2000). Zale has waived our review of this issue because defense counsel responded affirmatively w hen the trial court asked whether counsel was satisfied with t he instructions as given.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Zale next argues that his trial counsel provided ineffective a ssistance in a variety of ways. We disagree.

A claim of ineffective assistance of counsel presents a mixed question of fact and constitutional law. People v Trakhtenberg , 493 Mich 38, 47; 826 NW2d 136 (2012). We review for clear error the trial court’s findings of fact and review d e novo issues of constitutional law. Id . Because Zale did not receive a Ginther 1 hearing, our review is limited to mistakes apparent from the record. People v Mack , 265 Mich App 122, 125; 695 NW2d 342 (2005).

A criminal defendant has the fundamental right to effective as sistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; United States v Cronic , 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984). To prove that defense counsel was ineff ective, the defendant must show that (1) defense counsel’s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that counsel’s deficient performance prejudiced the

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-5- defendant. Strickland v Washington , 466 US 668, 687-688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). See also People v Pickens , 446 Mich 298, 326; 521 NW2d 797 (1994). The defendant must overcome the strong presum ption that defense counsel’s per formance constituted sound trial strategy. People v Vaughn , 491 Mich 642, 670; 821 NW2d 288 (2012). A defendant was prejudiced if, but for defense c ounsel’s errors, the result of the proceeding would have been different. Id . at 671.

First, Zale contends that counsel should have moved for a chan ge of venue because of pretrial publicity. A change of venue is warranted if there wa s extensive, inflammatory publicity such that jurors could not remain impartial after being exposed to it. People v Cline , 276 Mich App 634, 639; 741 NW2d 563 (2007). However, “[w]hen a juror, a lthough having formed an opinion from media coverage, swea rs that he is without prejudic e and can try the case impartially according to the evidence, and the trial court is satisfied that the juror will do so, the juror is competent to try the case.” Id . (quotation marks and citation omitted).

In this case, the trial court asked each juror whether they ha d read anything or heard anything about the case during voir dire. The court then asked each juror who had read or heard about the case whether they could set aside any opinions they h ad formed and reach a conclusion based only on the evidence. Thos e who answered under oath that they could were seated, and those who said they could not were dismissed. Because Zale was tried only by those jurors who were competent, he cannot establish that counsel’s decision not to move for a change of venue prejudiced him.

Second, Zale argues that counsel i mproperly agreed to the pros ecutor’s request to call a specific witness to testify about another witness’s arrest. Co unsel’s decisions regarding what witnesses to call and what evidence to present are matters of t rial strategy. People v Horn , 279 Mich App 31, 39; 755 NW2d 212 (2008). Contrary to Zale’s argum ent, this witness’s impeachment testimony did not violate MRE 609 because it involv ed an arrest, not a conviction. Zale has not shown that counsel ’s decision fell below an object ive standard of r easonableness.

Third, Zale argues that counsel was ineffective for failing to object to problems with the jury instructions. A criminal defendant is entitled to a prope rly instructed jury. People v Armstrong , 305 Mich App 230, 239; 851 NW2d 856 (2014). Jury instruction s must include “all the elements of the charged offenses and any material issues, d efenses, and theories that are supported by the evidence.” People v McKinney , 258 Mich App 157, 162-163; 670 NW2d 254 (2003). Whether to request a part icular jury instruction is a matter of trial strategy. See People v Matuszak , 263 Mich App 42, 59-60; 687 NW2d 342 (2004).

Zale argues that trial counsel should have requested that the trial court instruct the jury with M Crim JI 7.16a, which provi des in relevant part:

(1) If you find both that—

(a) the deceased was breaking and entering a dwelling or busi ness, or committing home invasion, or had broke and entered or committed home invasion and was still present in the dwelling or business, or is unlawf ully attempting to remove a person from a dwelling, business, or vehicle against t he person’s will,-6- and

(b) the defendant honestly and reasonably believed the deceas ed was engaged in any of the conduct just described

––you must presume that the defendant had an honest and reasonable belief that imminent [death / great bodily ha rm / sexual assault] would occ ur.

* * *

(c) the defendant was engaged in the commission of a crime or using the dwelling, business premises, or vehi cle to further the commissi on of a crime . . . .

Contrary to Zale’s assertion, this instruction does not cover a situation in which a person is breaking and entering a vehic le—it only covers a situation i n which a person is “unlawfully attempting to remove a person from a . . . vehicle against the person’s will . . . .” Zale testified that Derek punched into his vehicle and was attempting to open the interior door handle. Zale presented no evidence that Derek was attempting to remove him from his vehicle. Accordingly, defense counsel acted reasonabl y by not requesting this instruc tion because it did not apply to the facts of this case.

Zale also argues that trial counsel should have challenged the trial court’s reading of M Crim JI 7.18, which states that a person who started an assault on someone else with deadly force or a dangerous or deadly weapon cannot claim to have acted in s elf-defense unless he or she genuinely stopped the fight or assault and clearly let the othe r person know that he or she wanted to make peace. The trial court altered this instruction by rem oving the phrase “with deadly force or a dangerous weapon.”

We conclude that Zale has not established that but for this al teration, the results of his proceeding would have been different. A vehicle may be a dange rous or deadly weapon when it is used to accomplish an assault. People v Goolsby , 284 Mich 375, 378; 279 NW 867 (1938). Also see People v Sheets , 138 Mich App 794, 799; 360 NW2d 301 (1984) (holding that assa ult with a dangerous weapon applied when the defendant drove the ve hicle at the victims and then applied the brakes with the intent of scaring them). The evide nce in this case established that Zale cut Derek off in traffic a nd drove recklessly in front of him by braking unpredictably, as if to instigate an accident. While the trial court altered the la nguage of the instruction, the instruction remained applicable to the facts of the case, and the instruction as read accurately represented the state of the law to the jury. We conclude that trial counsel did not act unreasonably by failing to object to the instruction.

Zale next contends that trial counsel was ineffective for fail ing to call an expert witness on self-defense. However, the determination of whether a perso n believed that deadly force was necessary to defend him- or hersel f must be made on the basis o f “what an ordinarily prudent and intelligent person would do on the basis of the perceptions of the actor.” Orlewicz , 293 Mich App at 102. The determination of whether an ordinary person wo uld have believed that deadly force was necessary did not require scientific, technical, or o ther specialized knowledge. Accordingly, we are not convinced that trial counsel’s decision not to employ an expert witness was unreasonable or affected t he outcome of Zale’s case.-7- Finally, Zale argues that counsel was ineffective for agreeing to strike the testimony of witnesses to previous r oad-rage incidents b ecause those witness es could not identify Derek as the person involved. Again, defense counsel’s decisions to call an d investigate witnesses are matters of trial strategy. Horn , 279 Mich App at 39. We reject appellate counsel’s suggestion that trial counsel should have instead “prep ared” the witness to identify Derek as the perpetrator when there was no indication in the record that the witnesses were s ure of that fact. We instead conclude that trial counsel’s decision to strike those witnesse s who could not affirmatively identify Derek as the person with whom they were involved in ro ad-rage incidents was reasonable.

We affirm.

/s/ Peter D. O’Connell